Open Book Examination

Md. Arifin Arif

LLBA2018000559

Question:Do you think that Common carriers Act 1865 is effective for us? Show argument
in favour of your opinion.
Answer: In English law a Common carrier is defined as one who undertakes to carry for hire,
from place to place, the goods of anyone who employs him. The essential features of a common
carrier, according to English law, is that he is prepared to carry the goods _of anyone without
discrimination. If a carrier reserves to himself the right to reject an offer (even if there is accom
modation in the carriage and the offeror is prepared to pay the usual freight) he is not a common
carrier. Belfast Rope work Co. v. Bushell. Example : A lorry of a Transport Company or a Te
In Bangladeshi law the term common carrier is used in a restricted sense. The Common Carriers
Act of 1865 defines a common carrier as any individual, firm; or company (other than the
government) who transport goods, as a business, for money, over land or inland waterways,
without discrimination between different consignors. 'mpo.
"Common Carrier" denotes a person, other thah the Government, engaged in the business of
transporting for hire property from place to place, by land or inland navigation, for all persons
indiscriminately. Private carrier on the other hand (being bailee having duty to exercise
reasonable care ol the goods) who does not hold himself out as exercising the public employment
like common carrier.
The laws related to carriage in Bangladesh are mainly the Carriers Act '1865; Carriage by Air
(lnternational Convention) Act 1966; The Carriage of Goods by Sea Act 1925 and the Railway
Act, 1989.
Under the Carriers Act, 1865 on the acceptance of the goods for carriage, the carrier
automatically becomes charged with the responsibility of carrying them in safety to the
destination and of discharging them at that place also in safety. Loss and damage due to
negligence and criminal liability cannot be contracted out. However, other liability may be
varied by special contract. The consignor has to prove his loss or non-delivery only. Notice for
loss is required to be served within six months from the date on which the consignor first learned
of the loss. The carrier has a duty to accept and carry the goods according to his public
profession. Generally carrier cannot refuse to deliver except in exceptional cases.
The carrier has the following duties:
(a) a duty to stop goods in transit on receiving notice from the consignor;
(b) duty to carry the goods and to deliver them at the appointed destination on time/reasonable
time;
(c) not to deviate from the agreed route. lf so deviates, he cannot claim the benefits of the terms
of the contract; a duty not to deliver goods except on production of original documents.
However, carrier may exclude liability for loss and damage in certain circumstances except
arising by negligence. ln case of loss, Court's presume negligence or some other fault of the
carrier. The consigner has to prove nothing except this that the goods have not been delivered at
the destination.

THE LIABILITIES OF A COMMON CARRIER

English Law

According to English Common Law a common carrier of goods is an insurer, i.e. he is bound to
indemnify the owner in full for any loss or damage to the goods in course of carriage. This rule
of full liability is subject to certain exceptions. The carrier is not liable in the following cases :

(a) When damage is caused by an Act of God, by which is meant a natural calamity like a storm
or earthquake.

(b) When damage is caused by the enemies of the state, e.g., during wars.

(c) When damage is caused by some inherent defect in the .goods or negligence of the consignor.

(d) When there is a special agreement limiting the liability of the carrier.

(e) There is no liability for damages caused after the goods arrive at their destination.

Bangladeshi Law

The liabilities of a common carrier of goods in India are laid down in the Common Carriers Act
of 1865.  This Act divides goods into. two categories :
  Scheduled and
 Non-schedule

Scheduled goods are certain articles enumerated in a schedule to the Act. They are valuable
articles like gold, silver, jewellery,. paintings, silk, title deeds, currency notes and coins etc. All
other articles are non-scheduled.

Rules : The rules regarding the liability of common carriers in India are summarised below:

l. For Scheduled articles exceeding Rs.100 in value, the carrier is liable for all loss and damage,,

(a) If the value and the description of the goods are disclosed by the consignor to the carrier, or

(b) If the loss or damage is due to a criminal act of the carrier, his agent or servant.

2. The common carrier can charge extra for carrying scheduled articles but cannot limit his
statutory liability by any special agreement.

3. "The liability of a common carrier can be limited h;. agreement under the provisions of
Sections 6 and 8 of the Act

of 1965 but that there must be a limitation of the liability". M. G. Brothers Lorry Set-vice v.
Prasad Textiles.

4. The common carrier is responsible for loss or damage caused by negligence of criminal acts
done by himself, his agents or servants. Bontex Knitting Works Ltd v. St. John's Garage.

5. In case of loss or damage, the claimant must notify the carrier within six months of the date of
knowledge of the loss or damage.

6. The above rules apply only to common carriers as defined by the Common Carriers Act of
1865. Thus, they do not apply to carrier of passengers or to railways.

7. Measure of damages : The measure of damages for delay for goods lost or damaged, is the
difference between the value of the goods at the time when they ought to have been delivered
and at the time when they were actually delivered. Wilson v.Lancashire and Yorkshire Railway
Co.

“
It is well settled that it is the market price at the time the damage occurred which is the damage
to be awarded." Union of India v. West Punjab Factories Ltd"

So above this discussion it is clear that the Common carriers Act 1865 is effective for us.